IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, No. 77012-8-1
Respondent,
V. UNPUBLISHED OPINION
JAGANA, MODI MAMA,
DOB: 01/10/1969,
Appellant. FILED: February 25, 2019
SCHINDLER, J. — A jury convicted Modi Mama Jagana of two counts of identity
theft in the second degree. Jagana claims (1) his conviction on an uncharged crime
violated due process,(2) his attorney provided ineffective assistance of counsel, and (3)
insufficient evidence supports the jury verdict. Because neither the record nor case law
supports his arguments, we affirm.
FACTS
Fatou Dibba planned to open a hair salon and beauty supply store in Lynnwood.
In mid-2012, Dibba hired Modi Mama Jagana as a contractor to do the necessary
renovations. Dibba and Jagana did not enter into a written contract. Dibba gave
Jagana a key to the store so he could work when she was not there.
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During the fall of 2012, Dibba traveled to Amsterdam for several weeks. Jagana
finished working on the renovation project while Dibba was away. When Dibba
returned, city inspectors told her the construction work did not meet code requirements.
Dibba hired a different contractor to redo the construction work so she could obtain city
approval and open the store.
In January 2013, Dibba discovered her Bank of America checking account was
nearly overdrawn. Dibba accessed her account online and found that Jagana had
cashed two of her checks without her permission. Dibba immediately contacted the
bank and the police.
Lynnwood Police Detective Douglas Teachworth interviewed Jagana. Jagana
admitted cashing the checks but insisted the checks were payment for the construction
work. Dibba told Detective Teachworth that she had already paid Jagana for his work.
Detective Teachworth tried to call Jagana again but the phone was disconnected.
The State charged Jagana by amended information with one count of forgery in
violation of RCW 9A.60.020(1)(b) and two counts of identity theft in the second degree
in violation of RCW 9.35.020(1) and (3).1 Jagana pleaded not guilty.
Dibba testified that she agreed to pay Jagana $3,000 for the construction work.
Dibba also paid for Jagana's license and bond, as well as supplies. Dibba testified she
paid Jagana half at the beginning and the other half when she returned from
Amsterdam. Dibba said she paid Jagana $200 in addition to what she owed him.
I At the start of trial, a second amended information was filed for the sole purpose of correcting a
scrivener's error regarding one of the check numbers.
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Dibba testified she paid Jagana in cash. Dibba said she often carried two or
three blank checks with her in her purse. Dibba said Jagana had access to her purse
when she was at the store. Dibba denied issuing a check to Jagana for any purpose.
Jagana testified the original estimate for the work was $7,500. Jagana said he
agreed to reduce the price to $4,000 because Dibba paid for his license and bond, as
well as supplies. Jagana testified Dibba gave him two signed personal checks before
leaving for Amsterdam—one check made out for $650 and the other for $750. Jagana
said the checks were blank except for Dibba's signature and the dollar amount. Jagana
said he completed the signed checks by filling in his name, the date, and the dollar
amount "in letters." On the "memo line" of one of the checks, Jagana wrote "[p]ayment
for work."
Jagana said Dibba asked him not to cash the checks right away. Jagana
testified Dibba said she would call him from Amsterdam when the money was available
in her account. Jagana said he told Dibba he would need to cash the checks if she did
not pay him. Jagana said he attempted to call Dibba after she returned from
Amsterdam but she blocked his number.
Jagana testified he went to Africa to visit family sometime in November or
December 2012. After he returned, Jagana decided to cash Dibba's checks. Jagana
said he needed money for labor costs he paid while waiting for Dibba to pay him.
Jagana opened a new bank account in his name at the bank where he had a mortgage
account. Jagana cashed the $650 check, taking $600 in cash and depositing the other
$50 in the account. Two days later, Jagana attempted to deposit the other check using
mobile deposit but the transaction did not go through.
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Jagana admitted Dibba never gave him permission to cash the checks. Jagana
said he cashed the checks because Dibba never paid him for his work.
The jury found Jagana not guilty of forgery. The jury convicted Jagana of two
counts of identity theft in the second degree.
ANALYSIS
Due Process
For the first time on appeal, Jagana contends the State violated his right to due
process by seeking to convict him on conduct that was not charged in the information.
A defendant has a constitutional right to be informed of the nature and cause of
the charges against him. U.S. CONS-r. amend. VI; WASH. CONST. art. I, § 22. An
information is constitutionally sufficient only if all essential elements of a crime are
included in the document. State v. Porter, 186 Wn.2d 85, 89, 375 P.3d 664 (2016).
"'An essential element is one whose specification is necessary to establish the very
illegality of the behavior charged.'" State v. Zillvette, 178 Wn.2d 153, 158, 307 P.3d
712(2013)2 (quoting State v. Ward, 148 Wn.2d 803, 811, 64 P.3d 640 (2003)). "The
purpose of this essential elements rule is to sufficiently apprise the defendant of the
charges against them so that he or she may prepare a defense." State v. Kosewicz,
174 Wn.2d 683, 691, 278 P.3d 184 (2012).
A person commits the crime of identity theft in the second degree when with
intent to commit "any crime," he or she knowingly obtains, possesses, uses, or transfers
a means of identification or financial information of another person and obtains money
or anything else that is $1,500 or less in value. RCW 9.35.020(1),(3).
2 Internal quotation marks omitted.
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The charging document plainly and accurately informed Jagana of all essential
elements of the charged crime. The amended information alleged Jagana committed
two counts of identity theft in the second degree as follows:
Count 2: SECOND DEGREE IDENTITY THEFT committed as follows:
That the defendant, on or about the 12th day of January, 2013, did
knowingly obtain, possess, use and transfer a means of identification and
financial information of a person, to wit: check #116 belonging to the Bank
of America account of Fatou Dibba, with the intent to commit, aid, and
abet a crime, to-wit: Forgery; proscribed by RCW 9.35.020 (1) and (3), a
felony.
Count 3: SECOND DEGREE IDENTITY THEFT committed as follows:
That the defendant, on or about the 12th day of January, 2013, did
knowingly obtain, possess, use and transfer a means of identification and
financial information of a person, to wit: check #115 belonging to the Bank
of America account of Fatou Dibba, with the intent to commit, aid, and
abet a crime, to-wit: Forgery; proscribed by RCW 9.35.020 (1) and (3), a
felony.
Jagana contends that contrary to the language of the amended information that
states he intended to commit forgery, the prosecutor argued during closing argument
that he acted with the intent to commit theft. The record does not support Jagana's
assertion that the State sought to convict him on an alternative theory that he committed
identity theft with the intent to commit theft.
Identity theft is not an alternative means crime. State v. Fedorov, 181 Wn. App.
187, 197-198, 324 P.3d 784 (2014). "It is reversible error to try a defendant under an
uncharged statutory alternative because it violates the defendant's right to notice of the
crime charged." State v. D000an, 82 Wn. App. 185, 188, 917 P.2d 155 (1996). But the
State is not required to specify in the information that Jagana intended to commit the
crime of forgery. It is sufficient for the information to allege Jagana committed identity
theft with the intent to commit "any crime." RCW 9.35.020(1). Surplus language in an
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information may be disregarded. State v. Tvedt, 153 Wn.2d 705, 718, 107 P.3d 728
(2005). The to-convict jury instructions on identity theft in the second degree correctly
state that the State must prove beyond a reasonable doubt that Jagana knowingly
obtained, possessed, or transferred or used the checks with the intent to commit "any
crime." The to-convict jury instructions state:
To convict the defendant of the crime of Identity Theft in the
Second Degree,. .. each of the following elements of the crime must be
proved beyond a reasonable doubt:
(1) That on or about the 12th day of January, 2013, the defendant
knowingly obtained, possessed, or transferred, or used a
means of identification or financial information of another
person—Check #116 [and #115]
(2) That the defendant did so with the intent to commit any crime;
and
(3) That the defendant knew that the means of identification or
financial information belonged to another person; and
(4) That any of these acts occurred in [the] State of Washington.
If you find from the evidence that each of these elements has been
proved beyond a reasonable doubt, then it will be your duty to return a
verdict of guilty.
On the other hand, if, after weighing all the evidence, you have a
reasonable doubt as to any one of these elements, then it will be your duty
to return a verdict of not guilty.
The prosecutor did not use the term "theft" at any point during closing or rebuttal
argument. During closing argument, the prosecutor addressed the elements in the to-
convict jury instructions and described how the State's evidence applied to each charge.
In regard to the identity theft charges, the prosecutor argued:
[O]n or about the 12th day of January, 2013, the defendant knowingly
obtained, possessed, or transferred, or used as a means of identification
or financial information of another person, check 116. It is uncontested
the defendant used check 116 on January 12th of 2013. He possessed it.
Had it in his hand. He opened up the account and he cashed it.
Transferred it. Done. The defendant did so with the intent to commit a
crime. Yeah. He intended to take her money.
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Jagana contends that by using the phrase,"He intended to take her money," the
prosecutor invited the jury to convict him of identity theft on the uncharged theory of
intent to commit theft. We disagree. In the context of the entire argument, it is apparent
that the prosecutor argued Jagana knowingly obtained, possessed, and transferred
Dibba's check 116 to obtain money from her bank account. The prosecutor's argument
is entirely consistent with the charging document and the jury instructions. The
information provided sufficient notice for Jagana to defend against the charges.
Ineffective Assistance of Counsel
Jagana contends his attorney provided ineffective assistance of counsel by
proposing the to-convict identity theft jury instructions. The trial court used the
proposed to-convict instructions to instruct the jury.
The Sixth Amendment to the United States Constitution and article I, section 22
of the Washington Constitution guarantee effective assistance of counsel. State v.
Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011). To establish ineffective assistance of
counsel, Jagana must show (1) his counsel's performance was deficient and (2) the
deficient performance resulted in prejudice. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322,
334-35, 899 P.2d 1251 (1995).
To prevail on a claim of ineffective assistance of counsel, the defendant must
overcome a strong presumption that defense counsel was effective. Strickland, 466
U.S. at 689; McFarland, 127 Wn.2d at 335. Failure to meet either prong of the two-part
test for ineffective assistance of counsel ends the inquiry. State v. Hendrickson, 129
Wn.2d 61, 78, 917 P.2d 563(1996). Jagana cannot establish ineffective assistance of
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counsel. The to-convict jury instructions that defense counsel proposed accurately
state the law. The instructions mirror the language of the identity theft statute and 11A
Washington Practice: Washington Pattern Jury Instructions: Criminal 131.06, at 616
(4th ed. 2016).
Nevertheless, Jagana argues his attorney should not have proposed instructions
that stated he acted with the intent to "commit any crime" but instead, should have
proposed instructions that used the surplusage language in the amended information.
The surplusage language in the amended information states Jagana acted with the
intent to commit "a crime, to-wit: Forgery." But as noted, unnecessary language that is
included in an information is not an element of the crime that either must be proved or
included in the jury instructions. Tvedt, 153 Wn.2d at 718.
State v. Morales, 174 Wn. App. 370, 298 P.3d 791 (2013), is distinguishable.
The State charged the defendant Morales with two counts of felony harassment of
Yanett Farias in violation of RCW 9A.46.020. Morales, 174 Wn. App. at 375-76.
However, the to-convict jury instruction stated Morales placed "'Trinidad Diaz &/or
Yanett Farias in reasonable fear that the threat to kill would be carried out.'" Morales,
174 Wn. App. at 376.3 In closing argument, the prosecutor referred to the jury
instruction to argue the testimony of Diaz established he was fearful Morales would
carry out the threat to kill. Morales, 174 Wn. App. at 383. We held the court erred by
instructing the jury on an uncharged crime and the error was not harmless. Morales,
174 Wn. App. at 383-84. Unlike in Morales, here, the jury instructions correctly state the
law.
3 Emphasis in original
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Sufficiency of the Evidence
Jagana argues insufficient evidence supports the identity theft in the second
degree jury convictions. Due process requires the State to prove all essential elements
of the charged crime beyond a reasonable doubt. U.S. CONST. amend. VI; WASH.
CONST. art. I, § 22; In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed 2d 368
(1970). In determining the sufficiency of the evidence, we view the evidence in the light
most favorable to the State and determine whether any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. State v.
Townsend, 147 Wn.2d 666, 679, 57 P.3d 255(2002). A challenge to the sufficiency of
the evidence admits the truth and all reasonable inferences from the State's evidence.
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We defer to the trier of
fact on issues of witness credibility. State v. Witherspoon, 180 Wn.2d 875, 883, 329
P.3d 888 (2014).
Jagana contends the State failed to prove he intended to commit "any crime" as
required by RCW 9.35.020(1). Viewing the evidence and logical inferences in the light
most favorable to the State, the evidence demonstrates Jagana's intent to commit "any
crime" and supports the jury convictions for identity theft in the second degree.
Dibba testified Jagana did not work on the construction of the store after October
2012 and she paid him only in cash. Dibba said she never wrote Jagana a check or
gave him a blank check for any purpose. Dibba also testified that she often left a few
checks in her purse and Jagana had access to her purse, as well as access to business
documents containing her actual signature. Dibba said she did not give Jagana
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permission to cash the checks. Dibba testified the two checks Jagana cashed were not
in her handwriting.
Jagana admitted he wrote his name and date on the checks, spelled out the
dollar amounts, and wrote "[p]ayment for work" in the memo lines. Jagana admitted
Dibba never gave him permission to cash the checks. The evidence shows Jagana
knowingly possessed the checks and deprived Dibba of the funds in her account.
Sufficient evidence supports the jury finding the intent to commit a crime.
We affirm the jury conviction of two counts of identity theft in the second degree.
s t_9,1Af-ESLa,
WE CONCUR:
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